Franzman v. Davies

• Decision Date: 22 March 1905
• Citation: 80 P. 251,32 Mont. 251
• Parties: FRANZMAN v. DAVIES et al.
• Court: Montana Supreme Court

80 P. 251

32 Mont. 251

FRANZMAN v. DAVIES et al.

Supreme Court of Montana

March 22, 1905

Commissioners' Opinion. Appeal from District Court, Silver Bow County; Wm Clancy, Judge.

Action by C. V. Franzman, doing business as the Carder Wall Paper Company, against Frank N. Davies and another, doing business as George J. Davies & Co. From a judgment of the district court dismissing an appeal by defendants from the judgment of a justice, defendants appeal. Reversed.

O. M Hall, for appellants.

Carl J Smith, for respondent.

POORMAN C.

This action was originally commenced in justice's court, where a judgment was rendered for plaintiff on December 11, 1902. On December 16th defendants' notice of appeal and undertaking on appeal to the district court were filed; also a transcript fee of $2.50 and a filing fee of $5 were paid. On December 20th respondent excepted to the sufficiency of the sureties on the undertaking. On December 26th (the 25th being a nonjudicial day) the appellant deposited a cash bond on appeal in double the amount of the judgment, and on December 29th a transcript on appeal was filed in the district court. On March 7, 1903, respondent filed a motion to dismiss the appeal, for the reasons: "First. That said appeal was not filed in the district court within the time allowed by the rules of this court and the statutes of Montana. Second. For the reason that the sureties on the undertaking on appeal did not justify as required by law, or at all, and that no notice of such justification was ever served on plaintiff or his attorney." This motion was supported by an affidavit to the effect that no sureties on the undertaking had justified as required by law. On May 16, 1903, the court sustained the motion to dismiss the appeal, its order being as follows: "This day, after argument by counsel, the motion to dismiss the appeal herein is by the court sustained." On January 9, 1904, the appellant filed a motion to dismiss the case, for the reason that "plaintiff has for more than six months neglected to demand or have a judgment entered in accordance with the rulings of this court sustaining said motion" to dismiss the appeal. This motion was denied. Afterwards, on February 6, 1904, the court entered judgment of dismissal of the appeal, which, after the introductory part, is as follows: "Now, therefore, it is ordered, adjudged, and decreed that the said appeal be dismissed at defendant's cost, and that said cause be remanded to the court from which said appeal was taken." This appeal is from this judgment of dismissal, and was taken to this court on the 6th day of February, 1904.

1. It is contended that the appeal to this court should be dismissed, for the reason that the same was not taken within 90 days after the date of the order sustaining the motion to dismiss the appeal from the justice's court. This order however, is not appealable. Section 1722, Code Civ. Proc., as amended by Sess. Laws 1899, p. 146; Murphy v. King, 6 Mont. 30, 9 P. 585; Owen v. McCormick, 5 Mont. 255, 5 P. 280; Lisker v. O'Rourke, 28 Mont. 129, 72 P. 416; Butte & Boston C. M. Co. v. M. O. P. Co., 27 Mont. 152, 69 P. 714; Terr. v. Morehouse, 8 Mont. 311, 21 P. 663...